McCullough v. State

• Decision Date: 26 April 1911
• Citation: 136 S.W. 1055
• Parties: McCULLOUGH v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 1055

McCULLOUGH v. STATE.

Court of Criminal Appeals of Texas.

April 26, 1911.

Appeal from District Court, Fayette County; B. G. Neighbors, Special Judge.

Manuel (Bud) McCullough was convicted of murder, and appeals. Reversed and remanded.

Edward H. Moss, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The jury gave appellant a life sentence for the murder of his wife.

The sister-in-law of appellant, Ollie Jamison, was the main state witness. In brief, she testified that appellant and his wife had been having trouble, and the night preceding the homicide in the early morning deceased had spent the night at her mother's. Appellant spent the night at his home a short distance away. The morning of the homicide he went after his wife, carrying a shotgun. She finally accompanied him in the direction of home. En route they were met by Ollie Jamison, sister of the deceased. This witness testified that her sister was crying, stating that appellant had informed her he intended to kill her. Jamison interceded, and the wife took refuge behind Jamison, and Jamison testifies that appellant shot his wife over her head; that witness then ran, and appellant fired at her twice, missing her the first shot, but striking her in the arm the second shot. The wound was in front, practically tearing away the front and left side of the head of deceased. The wound, however, did not break the tissues of the brain. Deceased lived something like two months, and died. It is deemed unnecessary to go into a further detailed statement of the state's side of the case, as the questions to be discussed are not determined from the state's evidence.

Appellant took the stand in his own behalf, and contradicted Jamison as to the events transpiring at the time of the homicide, denying almost, if not entirely, the testimony of Jamison as to the condition of the parties up to and at the time of the firing of the shots. He states Jamison was armed with a rock and pocket knife, and sought to assault him; that, resisting this assault, he shot at her, and accidentally shot his wife; that he had no intention of shooting his wife. The state's theory was, further, that Jamison did not have the rock or knife.

1. The court submitted, in a general way, and perhaps sufficiently, the theory of accidental killing, viewed from the standpoint of self-defense against the attack made upon appellant by Jamison. The substance of this charge was that if Jamison had made an assault upon him, and he shot at her in self-defense, the killing of his wife would not constitute him guilty, and the jury should acquit. Appellant asked a charge, which was refused. Without stating the charge in full, it sought to submit to the jury the issue that if appellant shot his wife, and had no intent to do so, but that he was actuated by express malice in attempting to kill Ollie Jamison, and, failing to kill her, accidentally killed his wife, the homicide would be of no higher degree than murder in the second degree. Under appellant's evidence, this charge ought to have been given.

Article 48 of the Penal Code of 1895 provides as follows: "If one intending to commit a felony, and in the act of preparing for or executing the same, shall through mistake or accident do another act which, if voluntarily done, would be a felony, he shall receive the punishment affixed by law to the offense actually committed." It has been universally held in this state, under this statute, that if a party, attempting to kill another, actuated by express malice toward the party intended to be killed, accidentally kills a third party, the offense would be murder in the second degree. Ferrell v. State, 43 Tex. 503; Clark v. State, 19 Tex. App. 495; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Angell v. State, 36 Tex. 542, 14 Am. Rep. 380; Taylor v. State, 3 Tex. App. 387; Halbert v. State, 3 Tex. App. 656; McConnell v. State, 13 Tex. App. 390; Musick v. State, 21 Tex. App. 69, 18 S. W. 95; Breedlove v. State, 26 Tex. App. 445, 9 S. W....